Scotland Bill

Lord Brougham and Vaux Excerpts

Tuesday 28th February 2012 Lords Chamber

[Lord Forsyth of Drumlean]

My Lords, I shall try to be brief. The issue is covered by a number of other amendments grouped with this one. I was absolutely astonished when I reached page 2 of the Scottish edition of the Sunday Times this week. There was an article by Jason Allardyce which informed me that the First Minister, as a result of negotiation, had been able to get extra powers to raise income tax in Scotland and arrange extra borrowing. No mention was made of this orphan Bill and the fact that this is the product of the Calman commission. So far as I know we have still not had a formal response so we have not heard from the Scottish Parliament whether it is prepared to give legislative consent to it. That tells you everything you need to know about the gymnastic qualities and abilities of our glorious First Minister.

One of the things that is sad about this sad little Bill is that it is actually hugely radical in what it proposes. It will give enormous powers to the Scottish Parliament. It is devo-max, and as we have had reason to discover in our debates earlier today, it is devo-max on issues such as speed limits and so on to the point of absurdity. In this part we are dealing with the heart of huge changes that are being made, but which do not seem to be part of the debate in Scotland. Indeed, we are in an absurd position where the debate is about what further policies could be added when this Bill provides for them. Picking up on a point made by the noble Lord, Lord Foulkes, in one of his interesting newsletter blogs to his civil servant colleagues, I think that the Permanent Secretary in the Scottish Government described it as,

“lost in the mists of time”,

and no longer of relevance.

I have to apologise to my noble and learned friend. As always I had fantastic help from the Public Bill Office, but I do not think these amendments are brilliantly drafted. What I want to do is in effect get rid of the provisions that give the Scottish Parliament the ability to invent completely new taxes. Not only are we going to have a Scottish income tax, but completely new taxes can also be invented. They can invent a window tax and they can have a local income tax. My noble friend Lord Sassoon is shaking his head; I will happily give way as it might save some time if he is going to tell me that that is wrong. The only thing that stands in the way of those taxes being implemented is an Order in Council which has to be approved by both Houses of Parliament.

I am not going to start on another history lesson, but I thought that the whole point of this place—perhaps not this House but certainly the other place; and this place until 1911—is that it is not possible to raise taxes without the consent of Parliament. This provision in the Bill muddles that principle by allowing the Scottish Parliament to decide on a new tax—let us call it a local income tax, a window tax or something of that kind— and all it would require is the agreement of the Executive in London, which then has to put the proposals to both Houses of Parliament.

When it comes to the politics of this, is that really a proper check and balance on the ability to raise taxes on the people? It seems it would be politically extremely difficult in circumstances where, say, an SNP Administration decided to introduce a local income tax for either House to be able to oppose that with any political credibility. It is one thing to say, as those who argue for devo-max do, that the Scottish Parliament should be able to get all the revenues raised in Scotland and be responsible for expenditure; but it is quite another to provide for the invention of new taxes and for the only control on them to be an Order in Council, which is then subject to a resolution by both Houses.

In short, I do not believe that this clause should be in the Bill. I am very interested as to what new taxes the Government have in mind might be introduced by the Scottish Parliament, which it would fall upon the people of Scotland to pay. I am told that if you do an opinion poll in Scotland, there is great support for new powers—if you ask the people, “Would you like the Scottish Parliament to have new powers”, you will find there is a lot of support for that. However, if you ask the people of Scotland, “Would you like the Scottish Parliament to be able to invent new taxes, which would fall upon you?”, I wonder whether there would be the same level of support. If you asked them, “Would you like the Scottish Parliament to be able to invent and implement new taxes which you do not know about and which have not been discussed?”, I am not sure that that would command support. I find it extraordinary that this hugely radical change in the powers of the Scottish Parliament has not even been discussed in the Scottish media. I would wager that only a handful of people in Scotland are aware of it and of the implications.

This whole clause is not only unnecessary, it is constitutionally improper and I cannot for the life of me think why it should be there. I look forward to my noble friend telling me what problem this clause is meant to remedy and why it should be here. My amendment would simply prevent this happening without proper accountability. I think this is one of the most radical parts of the Bill and seems to be completely undesirable. I do not know whether Calman recommended it or not but I would be very surprised if such an open-ended provision was recommended, given that the Calman commission was so careful in its analysis. I will just forewarn my noble and learned friend of one thing. I am sure that in his briefing he will have lots of sentences that say, “This fulfils our manifesto commitment to implement the Calman proposal”. Well, there are other recommendations in Calman that are not in the Bill and which the Government have set their face against. So I would be careful about using that particular argument. I beg to move.

[The Deputy Chairman of Committees (Lord Brougham and Vaux)]

I advise the Committee that if Amendment 51A in this group is agreed to, I cannot call Amendment 51B due to pre-emption

[Lord Sewel]

My Lords, I rise to speak to Amendment 51A, which is in my name. The noble Lord, Lord Forsyth of Drumlean, is absolutely right when he draws our attention to the central constitutional importance of the clause. We are dealing with a fundamental constitutional issue—the power to create taxes, which is a defining characteristic of a sovereign parliament. At the moment, the new Section 80B proposed for the 1998 Act reads:

“Her Majesty may by Order in Council amend this Part so as to … specify, as an additional devolved tax, a tax of any description”.

Through this amendment, I want to ensure that any change in the tax powers of the Scottish Parliament will be subject to the scrutiny that you have with the primary legislative process rather than that which applies to secondary legislation. The Order in Council route is totally inadequate to secure the degree of political scrutiny that is appropriate and necessary. The granting of a power to enhance the taxing powers of a devolved parliament is not something that should be done lightly, casually or trivially. It should be done only through the process of primary legislation to ensure the absolute, measured, considered and examined scrutiny of any proposal. The order route is inadequate because we do not amend Orders in Council—this House is, rightly, reluctant to vote down orders and they see a very abbreviated form of parliamentary scrutiny.